Servitudes

Question 1

What family of 5 non-possessory estates do servitudes refer to?

Answer 1

1. the easement
2. the license
3. the profit
4. the real covenant
5. the equitable servitude

Question 2

What is an easement?

Answer 2

The easement is the grant of a non-possessory property interest in land, consisting of the right to use or control the land

Question 3

3 Easement Concepts

Answer 3

1. Dominant tenement v. servant tenement
2. Affirmative easement v. negative easement
3. Appurtenant to land v. In gross

Question 4

What is the difference between a dominant tenement and servient tenement?

Answer 4

Dominant Tenement (Estate) = the parcel that derives the benefit as a consequence of the easement
Servient Tenement (Estate): the parcel that bears the burden of the easement

Question 5

What is the difference between an affirmative easement and a negative easement?

Answer 5

Affirmative Easement = gives its holder the right to do something on another’s land, called the servient tenement
Negative Easement = entitles its holder to compel the servient land-owner to refrain from doing something that would otherwise be permissible

Question 6

What is the difference between an easement appurtenant and an easement held in gross?

Answer 6

Easement is Appurtenant = when it benefits the easement holder in her physical use or enjoyment of her own land … it takes 2
Easement is in Gross = when its holder realizes only a personal or commercial gain, not linked to the easement holder’s use and enjoyment of her own land … it takes 1

Question 7

What are 4 ways to create an affirmative easement? [Remember PING]

Answer 7

1. Prescription (Implied easement)
2. Implication (implied easement)
3. Necessity (implied easement)
4. Grant and Reservation (express ways of creating easements. There are in a category of express easements

Question 8

How do you create an easement by grant and reservation?

Answer 8

i) Grant
Created by grant from the servient tenement holder to the dominant tenement holder
Statute of Frauds applies since this is an interest in land
ii) Reservation
A party selling or transferring property can reserve for himself or for a third person, the right to use the property for a specified purpose
Statute of Frauds applies where the writing is contained in a land deed

Question 9

What is a license?

Answer 9

The license is a freely revocable, mere privilege to enter another’s land for some narrow purpose. Licenses are not subject to the Statute of Frauds. Oral agreements are sufficient.

Question 10

Examples of a license

Answer 10

1. Tickets
2. Oral easements that violate the statute of frauds

Question 11

Rule of License

Answer 11

Although licenses are freely revocable at the will of the licensor, estoppel can bar revocation.
Estoppel applies when licensee has invested substantial money or labor, or both, in reasonable reliance of the license’s continuation
A license that cannot be revoked is treated as an easement … “irrevocable license” or an “easement by estoppel”

Question 12

What is a profit (a prendere)?

Answer 12

The profit entitles its holder to enter the servient tenement and take from it things attached to the land (ex. the soil or some other resource, such as minerals, timber, oil, fish, or wildlife)
The profit shares all of the rules of easements

Question 13

The Profit (A Prendre)

Answer 13

The profit entitles its holder to enter the servient tenement and take from it things attached to the land (ex., the soil or some other resource, such as minerals, timber, oil, fish, or wildlife). The profit shares all of the rules of easements.

Question 14

The five elements of easement by prescription:

Answer 14

1. Continuous = uninterrupted use for the statutory time period consistent with that of a reasonable easement holder’s use
2. Open and notorious = visible use, not covert or hidden
3. Hostile = use without servient owner’s permission
4. Actual = literal use, not symbolic or hypothetical
5. Exclusive = the user can acquire a prescriptive easement even though the easement is also used by the servient owner and others … The right must not depend on a similar right in others

Question 15

For both easements created by implication and necessity, what does “unity of ownership” mean?

Answer 15

Ownership - means that we start with a single landowner
Easements created by both I and N mean that a grantor is dividing his land into servient and dominant estates

Question 16

For both easements created by implication and necessity, what does “time of severance” mean?

Answer 16

Severance - the moment of conveyance of one of these parcels (either dominant or servient)

Question 17

Easement by Implication

Answer 17

Sometimes there is a particular use that occurs on a parcel that ought to survive division of that parcel
“easement implied from prior existing use”
implied easements endure indefinitely unless terminated

Question 18

3 requirements for an implied easement:

Answer 18

Courts will imply an easement from a prior or existing use if:
1. there was a unity of ownership b/w the servient and dominant tenements
2. an apparent, existing, and continuing use of one parcel at the time of severance; and
3. at the time of severance, the parties expected that the use would survive division bc it was reasonably necessary to the dominant tenement’s use and enjoyment

Question 19

Easement by Necessity

Answer 19

the landlocked setting - an easement of way will be implied by necessity if grantor conveys a portion of his land with no way out, except over some part of grantor’s remaining land

Question 20

3 requirements for an easement by necessity:

Answer 20

An easement by right of way will be implied by necessity if:
1. there was a unity of ownership b/w the servient and dominant tenements
2. the necessity existed at the time of the severance of the two tenements
3. Depending on the jurisdiction, either strict or reasonable necessity

Question 21

For easements by necessity, what are the two possible standards for necessity?

Answer 21

Strict Necessity - the claimed easement is the only way to access the dominant tenement. (traditional and dominant view)
Reasonable Necessity - alternative access to the dominant tenement cannot be obtained without a substantial expenditure of money and/or labor (if this is the case, an easement by necessity is still allowed)

Question 22

For easements by necessity, what is the majority rule for the two possible standards for necessity?

Answer 22

1. an easement by necessity endures only so long as it is necessary
2. if the dominant owner secures another way out from the landlocked parcel, the easement by necessity ceases

Question 23

When is a dominant tenement (benefitted land) transferred to the next owner?

Answer 23

B conveys to Mr. X
dominant tenement (benefit) automatically transferred to Mr. X, regardless if it is even mentioned in the transfer

Question 24

When is a servient tenement (burdened land) transferred to the next owner?

Answer 24

A conveys to Mr. Y
Servient tenement (burden) is also automatically transferred to Mr. Y UNLESS Mr. Y is a BFP

Question 25

Second criteria for BFP:

Answer 25

At the time of his purchase, Mr. Y had to be w/o notice that there was an easement on his land

Question 26

How can BFPs w/o notice of the easement be protected by Recording Acts?

Answer 26

Specifically, Recording Acts can be used as a defense by subsequent owners of the burdened parcel that want to stop use of the easement. (Ex. on Class 18)

Question 27

When is an easement in gross transferable?

Answer 27

The easement in gross is not transferable unless it is for commercial purposes
If it is passed, at all, it must be independently transferred

Question 28

How is an easement in gross transferred?

Answer 28

usually accomplished through grant

Question 29

What is the rule for the scope of an easement?

Answer 29

The scope of an easement is set by the terms or conditions that created it. Unilateral expansion of an easement is not permitted.

Question 30

List the 10 main ways to terminate an easement [remember MODERN CAPE]:

Answer 30

1. Merger (aka unity of ownership) = the easement is terminated when title to the dominant tenement and title to the servient tenement become vested in the same person
2. Occurence = an easement created to end upon the occurrence of some event (sometimes called a defeasible easement) expires automatically if and when the stated event occurs
3. Destruction = destruction of the servient tenement, other than through the willful conduct
4. Estoppel = the servient owner materially changes position in reasonable reliance of the easement holder’s assurances that the easement will no longer be enforced
5. Release = release, in writing (Statute of Frauds), given by the easement holder to the servient landowner
6. Necessity = easements created by necessity expire as soon as the necessity ends UNLESS created by express grant, it will not end once the need ends
7. Condemnation = an easement may terminate by condemnation if the government exercises its eminent domain power to take title to a free interest in the servient estate for a purpose that is inconsistent with the continued existence of the easement … entitled to just compensation
8. Abandonment = the easement holder (on the dominant tenement) must demonstrate, by physical action, the intent to never make use of the easement again
9. Prescription = an easement can be terminated when the servient owner interferes with it in accordance with the elements of adverse possession
10. Expiration = if the duration of the easement is limited in some way, it ends through expiration of the stated period

Question 31

What is a negative easement?

Answer 31

a negative easement entitles its holder to compel the servient land-owner to refrain from doing something that would otherwise be permissible

Question 32

4 categories of negative easements [remember LASS]:

Answer 32

A servient owner is not allowed to block or interfere with a dominant land owner’s:
1. Light
2. Air
3. Support of building(s); and
4. Streamwater from an artificial flow

Question 33

How is a negative easement created?

Answer 33

A negative easement must be created expressly (ex. through a grant or reservation) in a deed of easement or land deed.

Question 34

What is a conservation easement?

Answer 34

Developed in the last 40 years to preserve scenic and historic areas and open space.
An owner of land can give a public body or a private charitable organization (ex. land trust) a conservative easement, preventing the servient owner from building on the land except as specified in the grant.

Question 35

What is a covenant?

Answer 35

A contract to do or to not do something related to land.
Unlike the easement bc it is not the grant of a property interest, but a contractual limitation.

Question 36

What is a restrictive covenant?

Answer 36

A promise to refrain from doing something related to land.

Question 37

What is an affirmative covenant?

Answer 37

A promise to do something related to land.

Question 38

When does a covenant become a real covenant?

Answer 38

When it is capable of running with the land at law, meaning that it is able to bind successors to the originally covenanting parties.

Question 39

When does a covenant become an equitable servitude?

Answer 39

When it is capable of running with the land in equity, meaning that it is able to bind successors to the originally covenanting parties.

Question 40

What is the difference between a real covenant and an equitable servitude?

Answer 40

Real Covenant - a covenant that is capable of binding successors and enforceable at law. (Ex. money damages follows a breach.)

Equitable Servitude - a covenant that is capable of binding successors and enforceable in equity. (Ex. Injunctive relief follows a breach)

Question 41

For a real covenant, when does the burden run with the land? [WITHN]

Answer 41

1. Writing
2. Intent
3. Touch and Concern
4. Horizontal and Vertical Privity
5. Notice

Question 42

Burden to run: Writing

Answer 42

The original promise, between A and B, must have been in writing (Statute of Frauds).

Question 43

Burden to run: Intent
(In other words, does the burden of A’s promise to
B run from A to A‐1?)

Answer 43

The original parties, A and B, must have intended that the promise wouldn’t bind successors.

Question 44

Burden to run: Touch and Concern
(In other words, does the burden of A’s promise to
B run from A to A‐1?)

Answer 44

The promise must touch and concern the land, meaning that it must affect the parties’ legal relations as landowners, and not simply as members of the public at large.

Question 45

Burden to run: Horizontal and Vertical Privity

Answer 45

Horizontal Privity - refers to the privity of estate b/w the originally covenanting parties, A and B. Requires that A and B, at the time the promise was made, were in “succession of estate.”
Succession of estate means that when the promise was made, A and B were in: (1) a grantor-grantee relationship; (2) a landlord-tenant relationship; (3) a mortgagor-mortgagee (debtor-creditor) relationship; OR (4) they shared some other servitude in common in addition to the covenant now in question.

Vertical Privity - the privity of estate based on some non-hostile nexus between A and A1. The non-hostile nexus can be the product of contract, blood relation, or devise. Strict vertical privity is required where the covenant is enforceable only against someone who has succeeded to the same estate as that of the original promisor.

Question 46

Burden to run: Notice

Answer 46

A1 must have had some form of notice of the promise when she took.

Question 47

For a real covenant, when does the benefit run with the land? [WITV]

Answer 47

1. Writing
2. Intent
3. Touch and Concern
4. Vertical Privity

Question 48

Benefit to Run: Writing

Answer 48

The original promise between A and B must have been in writing (Statute of Frauds).

Question 49

Benefit to Run: Intent

Answer 49

The original parties intended that the benefit would run.

Question 50

Benefit to Run: Touch and Concern

Answer 50

The promise must touch and concern the land, meaning that it must affect the parties’ legal relations as landowners, and not simply as members of the public at large.

Question 51

Benefit to Run: Vertical Privity

Answer 51

There must be some non hostile nexus b/w B and B1, which can be satisfied by contract, blood relation, or devise.
The standard is relaxed vertical privity. The promise is enforceable by a person who succeeds to the original promisee’s estate or to a lesser interest carved out of that estate. Ex. If B who owns in FS gives B1 a leasehold or a life estate.

Question 52

How is an equitable servitude created? [WITNES]

Answer 52

To create an equitable servitude that will bind successors (A1 and/or B1):
1. Writing
2. Intent
3. Touch and Concern
4. Notice
Note: The ES is a reminder that this is equitable servitude.

No burden and benefit analysis as the burden/benefit will run with the land if the elements for equitable servitude are satisfied.

Question 53

What is the Common Scheme Doctrine?

Answer 53

The majority of courts will imply what is called an implied equitable servitude (reciprocal negative easement) to hold B, the unrestricted lot holder, to the restriction.

Question 54

What are the 2 elements of the Common Scheme Doctrine?

Answer 54

1. When the sales began, the subdivider, A, had a general scheme of residential development which included the Ds lot now in question
2. The D, B, must have had some form of notice of the restriction when he took.

Question 55

List and explain the 6 mechanisms for residential segregation in the US.

Answer 55

1. Intimidation, Harassment, Violence
2. Redlining
3. Racial Zoning
4. Racial Steering
5. Blockbusting
6. Racially Restrictive Covenants

Question 56

What is redlining?

Answer 56

Systematic denial of various services by federal government agencies, local governments, and the private sector to residents of specific neighborhoods or communities on the basis of race.

Question 57

What is racial zoning?

Answer 57

Land regulations that limited land use based on race.

Question 58

What is racial steering?

Answer 58

The practice in which real estate brokers guide prospective home buyers toward or away from certain neighborhoods based on their race.

Question 59

What is blockbusting?

Answer 59

The practice of real estate agents and building developers to convince white property owners to sell their house at low prices, which they do by promoting the fead in those homeowners that racial minorities will soon be moving into the neighborhood.

Question 60

What is a racially restrictive covenant?

Answer 60

Contractual agreements that prohibit the purchase, occupation, or lease of property by members of a particular racial group.

Question 61

What is a racially restrictive covenant?

Answer 61

Contractual agreements that prohibit the purchase, occupation, or lease of property by members of a particular racial group.

Question 62

What is the state action requirement for the 14th Amendment’s Equal Protection Clause?

Answer 62

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property, w/o due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

State v. Private Action - assuring a space for personal decisions so that people can do things in “private” that are off limits to public actors.

Question 63

What are the 10 ways to terminate a covenants? [MAUL A CREEP]

Answer 63

1. Merger
2. Acquiescence
3. Unclean Hands
4. Laches
5. Abandonment
6. Changed Conditions Doctrine
7. Release
8. Estoppel
9. Eminent Domain
10. Prescription

Question 64

Terminate a Covenant: Merger

Answer 64

The covenant is terminated on the basis of unity of ownership of the benefit and burden by the same person.

Question 65

Terminante a Covenant: Acquiescence

Answer 65

Arises when P is trying to enforce the servitude against D, but P has failed to enforce the servitude against other breaches by D.

Question 66

Terminante a Covenant: Unclean hands

Answer 66

The court will refuse to enjoin a violation of a servitude that the P previously violated.

Question 67

Terminante a Covenant: Laches

Answer 67

Involves an unreasonable delay by P to enforce a servitude against the D causing prejudice to D (laches does not extinguish the servitude but only bars enforcement)

Question 68

Terminante a Covenant: Abandonment

Answer 68

Resembles acquiescence expect that it makes the servitude unenforceable as to the entire parcel rather than only as to the D immediately involved. The violation must be so general as to frustrate the original purpose of the covenant.

Question 69

Terminante a Covenant: Changed Conditions Doctrine

Answer 69

When a party seeks to be released from the terms of an equitable servitude bc of changed conditions, he or she must convince the court that the change complained of is so pervasive that the entire area’s essential character has been irrevocably altered. Piecemeal or border lot change is never sufficient.

Question 70

Terminante a Covenant: Release

Answer 70

A formal discharge of the covenant that is in writing (SOF) and typically recorded.

Question 71

Terminante a Covenant: Estoppel

Answer 71

If D reasonably relied upon the Ps words and/or conduct making it inequitable to allow the P to enforce the servitude.

Question 72

Terminante a Covenant: Release

Answer 72

A formal discharge of the covenant that is in writing (SOF) and typically recorded.

Question 73

Terminante a Covenant: Estoppel

Answer 73

If D reasonably relied upon the Ps words and/or conduct making it inequitable to allow the P to enforce the servitude.

Question 74

Terminante a Covenant: Eminent Domain

Answer 74

Condemnation of the burdened parcel, by governmental eminent domain power will end the covenant.

Question 75

Terminante a Covenant: Prescription

Answer 75

A covenant can be terminated when the promisor (burden holder) interferes with he promisee (benefit holder) from benefiting from the covenant in accordance with the elements of adverse possession.

Question 76

What is a common interest community?

Answer 76

Involves a real estate described in a declaration with respect to which a person, by virtue of such person’s property ownership in a unit, is obliged to pay real estate taxes, insurance premiums, maintenance, and/or improvement fees.

The majority of common interest communities are homeowner associations, then condos, then coops.

Question 77

What are homeowner associations?

Answer 77

Private associations often formed by real estate developers for the purpose of marketing, managing, and selling homes and lots in residential subdivisions.

Question 78

What are condominiums?

Answer 78

Each unit is owned separately in FS by an individual owner. The exterior walls, the land beneath, the hallways, and other common areas are owned by the unit owners as tenants in common.

Question 79

What are cooperatives?

Answer 79

Title to the land and building is owned by a cooperation; the residents own all the shares of stock in the cooperation, and control it through an elected board of directors.
Each resident has a long-term renewable lease of an apartment unit. Hence, residents are both owners of the cooperative corporation (by virtue of stock ownership) and tenants of the corporation.
The cooperative property is usually subject to one blanket montage securing the money lender for the money borrowed to buy the land and erect the building.

Question 80

Test

Answer 80

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